Domestic (Family) Violence in Texas
Domestic Violence in Texas is defined in Texas Penal Code Section 22.01 and Section 22.02, which discuss domestic assault and aggravated domestic assault. If the charge involves continuous acts of violence against a family member, Texas Penal Code Section 25.11 will apply.
Under Texas Penal Code Section 22.01, assault is defined as follows:
a) A person commits an offense if the person:
1. Intentionally knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
2. Intentionally or knowingly threatens another with imminent bodily harm, including the person’s spouse; or
3. Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
b) An offense under subsection (a)(1) is a Class A misdemeanor except that the offense is a third degree felony if the person was previously convicted of an offense under this chapter or the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the person’s throat on neck or by blocking the person’s nose or mouth.
Under Texas Penal Code Section 71.003, Family is defined as:
“Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.
And Family Violence is defined under Texas Penal Code Section 71.004 as:
(1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself;
(2) Abuse, as that term is defined by Sections 261.001 (1) (C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
(3) dating violence, as that term is defined by Section 71.0021.
Under Texas Penal Code Section 71.0021, dating violence is defined as:
a) “Dating Violence” means an act, other than a defensive measure to protect oneself, by an actor that:
(1) is committed against a victim or applicant for a protective order:
a. with whom the actor has or has had a dating relationship; or
b. because of the victim’s or applicant’s marriage to or dating relationship with an individual with who the actor is or has been in a dating relationship or marriage; and
(2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
b) For purpose of this title, “dating relationships” mean a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
(1) the length of the relationship;
(2) the nature of the relationship; and
(3) the frequency and type of interaction between the persons involved in the relationship.
c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under subsection (b).
Intentionally, knowingly, or recklessly.
Looking at the above definitions, a person may notice that the frame of mind of the person taking the action that caused such family violence must be one of the following:
Intentionally, knowingly, or recklessly.
The first two are pretty self explanatory, but recklessly needs to be defined because this is basically the easiest for the prosecutor to prove.
Recklessly is defined as a situation where an individual takes an action without considering the ultimate outcome. For example, the person may not have intended for the other person to be harmed, but may have acted recklessly if such person pushed another and they fell down, injuring themselves.
Normally, a first time offense involving Family Violence Assault is a Class A misdemeanor, which carries a maximum jail sentence of 1 year and a $4,000 fine or both.
A third degree felony carries a maximum sentence 2-10 year prison sentence plus a maximum $10,000 fine and may occur when there has been a previous conviction for Family Violence Assault or Assault by Choking.
However, keep in mind that Community Supervision (Probation) may be an option and that jail/prison time may be avoided. Be careful when discussing your different options with an attorney because in some cases, the term “deferred adjudication” is used to describe a situation where a person pleads guilty, complies with probation and avoids a conviction if successful.
Watch out! Severe Immigration Consequences
I say be careful because if you are not a U.S. citizen, even with a deferred adjudication, you could be facing deportation, exclusion from admission to this country or denial of naturalization. This is because immigration is based on federal law, which says that even without a conviction due to a deferred adjudication, they will treat such charge as a violation of the immigration laws.
This issue is too complex to address here, but suffice it to say that you need an attorney that is either well versed in immigration law or knows an immigration lawyer to whom you can get a legal opinion. Do not rely on a “paper-pusher” type of lawyer, as you will need someone who understands the detailed immigration consequences due to criminal charges. If a criminal defense attorney does not mention these possible immigration consequences to a non-US Citizen, run away.
Were you involved in domestic violence? Click here to find more information about what you should do and how to get help from an attorney today!